Court Denies Restraining Order Against Ex-Boyfriend Who Threatened to Post Revenge Porn – EC v. CBT

In EC v CBT (N.J. Ct App. May 5 2013), the Defendant appealed the making of a final restraining order entered against him in the Plaintiff’s favour by a lower court pursuant to the Prevention of Domestic Violence Act in New Jersey. The original hearing revolved around the issue of whether or not the Defendant had engaged in a “course of conduct” which constituted stalking or whether his behaviour required restraints to protect the Plaintiff from immediate danger from the commission of further acts of domestic violence. The Plaintiff and defendant had resided together for a several months until the Plaintiff formed the view the relationship was dysfunctional, after which the parties separated. It was agreed by the parties that they had continued to have an intimate relationship subsequent to their separation for about a year.

The Plaintiff testified  that not long before the incident that triggered her application for a restraining order, she sent the defendant a “slide show” of compromising photographs of herself. The plaintiff admitted to sending the defendant these photographs of herself before inviting the defendant over to her house. During the month preceding her applying for a restraining order she had sent him a total of sixteen photographs of herself.

The trial judge at first instance decided to issue a Family Restraining Order against the defendant based on a “course of conduct” which she accepted amounted to stalking.

However in the course of her deliberations the Judge expressed bemusement as to why the Plaintiff had sent pictures of herself to the defendant after the events she had complained of had taken place. She said that she couldn’t fathom what would have motivated the Plaintiff to tell the Defendant to refrain from stalking her, yet following doing that, continue to transmit the pictures to him. The trial judge remarked that she did not feel that her acts expressed a clear message that she wanted to be left alone.

Nonetheless the Judge still made a finding that the Defendant’s behvaiour overall amounted to stalking under the relevant statute which provides that a person is guilty of stalking where they are purposely or knowingly engaging in a course of conduct directed at a specific person that would cause a reasonable person for their health and safety or the safety of a third person.

In arriving at this legal conclusion the Judge referenced several acts of the Defendant based on the Plaintiff’s testimony, which she accepted resulted in the Plaintiff becoming fearful. Some of these acts included the defendant allegedly following the Plaintiff to a bar during a high school re-union and her home in his car, after she had told him not to.

The Judge, in the course of making the order stated specifically that he did not give much credence to “e-mails and Facebook messages and all that nonsense because it’s not a face to face exchange. Nobody is in danger. Nobody suffers from that”.

On appeal, the defendant successfully argued that there was insufficient evidence before the trial Judge to support a finding he had engaged in stalking and that the restraining order was not necessary to support the restraining order in favour of the Plaintiff.

On appeal problems were identified with the plaintiff’s credibility and inconsistencies in her statements in the original hearing. Whilst the appeals court noted that the defendant’s conduct was “immature and jealous,” it found there was insufficient evidence upon which to found a case of stalking.

One of the critical aspects of the defendant’s behaviour complained of by the Plaintiff, in conjunction with the other acts, was his threat to post compromising photos of her on Craigslist.

Specifically he allegedly told her that he planned to post “sexual photographs” she had taken of herself and given to him on “Craigslist and some other dirty sites just to put them out there on dirty, sexual sites”. This practice has become commonly characterised as revenge porn.

Although it is not entirely clear from the case,  the catalyst for the Plaintiff seeking and obtaining the restraining order appeared to have been a message that the defendant had posted to her friend’s Facebook page, which her friend alerted her to. The specific nature and content of that message was not the subject of discussion in the Court’s deliberations.

Although the trial judge was dismissive of the online activities, she granted the restraining order on the basis that she accepted that the defendant had caused plaintiff fear by appearing at the bar and following her.

The Appeals Court held that the trial judge didn’t adequately deal with the plaintiff’s inconsistent testimony, whilst ignoring the defendant’s testimony in addition to failing to properly identify a “course of conduct” upon which to arrive at a finding the defendant had stalked the Plaintiff.

The Appeals Court noted that the trial judge failed to make a finding that the order was necessary to protect the plaintiff’s safety or person, and failed to adequately explain the equivocal nature of the plaintiff’s conduct insofar as she continued to interact with the defendant despite claiming she was fearful of him.

One of the critical issues which the case raises is the defendant’s threat to make public the compromising photos sent by the Plaintiff to the defendant. Oddly, the trial judge did not feel compelled to consider the impact of all of the online activities which transpired aside in arriving at her opinion. Yet the content of the Facebook message appeared to be the impetus for the Plaintiff seeking the restraining order.

The laws relating to anti-stalking in New Jersey clearly encompass such online activity, however the significance of the online activity was not addressed by the appeals court as it held that there was no relevant “course of conduct” which existed upon which to base a finding of stalking.

The judge’s comments questioning the Plaintiff’s motives for sending the photos of herself to the defendant is a dangerous one, in that it alludes to blame on the part of the victim, without any reference or regard to the time frame during which she sent the photos to him.

What action might the Plaintiff could be reasonably expected to take to prevent the harm she may have anticipated by the publication of what were hurtful, offensive and damaging photos being published by the Defendant?

Clearly the Plaintiff shouldn’t be expected to do just do nothing and merely wait for the defendant to execute his threat. Once photos appear on the internet, there are insurmountable difficulties as a practical matter to eliminating them from the medium. After all, it wouldn’t take photos long to  emerge online and quickly go viral, surfacing on revenge porn websites, accompanied by the victim’s  name, phone number and email address.

On the other hand, it is questionable whether it would be an appropriate use of the New Jersey anti-stalking laws, traditionally drafted to deal with actual violence or threats of violence to address online activities.

It has already been established that sending voluminous emails does not amount to harassment where the sender is identified and the emails aren’t sent in a manner intended to cause annoyance or harm. As is the case in New Jersey there are existing laws making stalking or harassment unlawful, although there is some contention as to whether these laws, intended to deal with spatial, offline bullying are adequate in addressing cyberbullying or cyberstalking.

The expansion of the internet has brought with it a new medium for abuse of the kind referred to in this case. It has been deemed necessary to enact new cyberspecific legislation to warrant this deficiency.

At the Federal and State level in the United States there are laws which target cyberstalking and/or cyberbullying. Freedom of speech issues, particularly in the US where first amendment issues apply, will invariably arise when questionable speech is posted online, requiring the balancing of the right to free speech and the protection of the victim from harm.

The need for specific cyberbullying legislation has arisen from the perceived shortcomings of existing laws by loved ones of victims of bullying, where laws dealing with stalking and unauthorised use of computers (the Computer Fraud And Abuse Act) have been felt to be inadequate in dealing with cyberbullying which is reaching epidemic proportions.

The early adopters of internet specific cyberbullying in the United States have tended to be those states which have reacted to incidents of cyberbullying where existing laws were perceived as having shortcomings.

It isn’t uncommon where relationships sour and discord arises between couples for one party to distribute copies of embarrassing photos or videos in an attempt to harrass, embarrass, humiliate and/or harm the other party in an attempt to exact revenge on the other party. (see Giller v Procopets. In Giller v Procopets an action for serious invasion of privacy was discussed in the context of providing a remedy to the victim. The case affirms that the common law redress for breach of confidence is available and the case could be useful as a precedent in common law jurisdictions where civil action is contemplated. At this point in time there is no statutory tort for breach of privacy under Australian common law.

Revenge porn sites have become a popular genre on the internet, popular sites including sextingpics.com, xhamster.com, and anonib.com amongst many others. On revenge porn sites, users upload x-rated photos of women, frequently ex-girlfriends, without the women’s permission. Not only are nude photos and videos found, but more dangerously private facts and details of the victim without their consent. Women therefore can find their image associated with their name, location and in some cases their links to social media accounts on the internet, leaving them vulnerable to all kinds of threats. In the United States presuming the person responsible can be identified victims may have recourse to legal actions for the torts of “public disclosure of private facts”, “intrusion on the rights of seclusion”, and “intentional infliction of emotional harm”.

Contrast websites hosting such content, which are immunised from liability in the United States by s230 of the Communications Decency Act, (a form of ‘safe harbour’) which states that websites aren’t liable for user content. Section 230 has been used to protect Facebook from being held liable for what its users write. In the case of Celia Barnes v Yahoo Inc, the Court held that Yahoo had immunity under s230 for nude images and contact information relating to her posted by a third party.

The Digital Millenium Copyright Act (DMCA)  also protects service providers that publish material submitted by internet users, although some users have successfully had material taken down by issuing DMCA take down notices to these revenge porn sites based on the fact that the users Facebook or other social media profile page violates copyright law.

Frequently porn websites don’t keep site age verification records required by Federal law to prevent the circulation of child pornography in breach of laws preventing the distribution of child pornography. (see Doe v Peterson  )

The purpose of revenge porn is explicitly to publicly shame, humiliate and destroy the lives and reputations of young women exploited by men they have once trusted. Clearly, from the proliferation of revenge porn websites, it is no longer onlyLara Bingle and other celebrities who have to worry about cyberbullying, sexting  and how to control the publication of generally offensive material and gross invasions of personal privacy.

Related posts:

  1. Supreme Court Grants Child Victim of Cyberbullying Anonymity In Court Proceedings
  2. Child Pornography Sexting Case By Minor To Proceed
  3. Police use facebook to serve intervention order
  4. Facebook Denies Making Private Messages Public
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